We The People

This week we dive into the fascinating history of global constitutionalism and declarations of independence. Linda Colley of Princeton University, author of the new book The Gun, The Ship, and the Pen: Warfare, Constitutions, and the Making of the Modern World, and David Armitage of Harvard University author of The Declaration of Independence: A Global History, join host Jeffrey Rosen. They explain how constitutions from around the world are intertwined with warfare, globalism and travel, writing, media and communication technologies, and more; and highlight stories of constitution-making by figures from Catherine the Great to George Washington and beyond. Questions or comments about the show? Email us at podcast@constitutioncenter.org. Additional resources and transcript available at constitutioncenter.org/interactive-constitution/media-library.

In the midst of March Madness, the Supreme Court recently heard oral argument in NCAA v. Alston. The case is an antitrust challenge to the NCAA’s rules on compensation for athletes, brought by college basketball and football players including Shawne Alston, a former West Virginia University running back who argues that college athletes are being exploited. The NCAA argues that maintaining the amateur status of college athletes actually fosters consumer choice between amateur and professional sports. Thomas Nachbar, professor of law at the University of Virginia School of Law who authored a brief in support of the NCAA, and Sandeep Vaheesan, legal director at the Open Markets Institute who co-authored a brief on behalf of Shawne Alston, join host Jeffrey Rosen to explore both sides of the case. They also explore the case's potential implication for the future of antitrust across industries, detail past Supreme Court decisions involving the NCAA, and more. Questions or comments about the show? Email us at podc

On March 23, the Supreme Court heard oral arguments in Cedar Point Nursery v. Hassid. Broadly, the case pits the rights of unions to communicate with workers who work and largely live on site versus the rights of business owners to keep people off of their private property. More specifically, the case asks whether California’s Agricultural Labor Relations Act, which allows union organizers to be granted temporary access to speak to agricultural employees on worksites—which are largely private property—amounts to a taking of property without just compensation that violated the Fifth Amendment. Hugh Baran and Robert McNamara joined Jeffrey Rosen to explain both sides of the case. McNamara, a senior staff attorney at Institute for Justice, filed an amicus brief in support of Cedar Point Nursery while Hugh Baran, staff attorney and Skadden Fellow at National Employment Law project, filed an amicus brief in support of the chair of the Agricultural Labor Relations Board, Victoria Hassid.  A term that will be helpfu

In honor of Women’s History Month, this week we highlight women constitutional visionaries from landmark eras in our nation’s history—sharing the legendary contributions of women to the founding; the fight for abolition, the right to vote, and the 19th Amendment; the civil rights and equal rights movements; and more. Martha Jones, author of Vanguard: How Black Women Broke Barriers, Won the Vote, and Insisted on Equality for All, and Lisa Tetrault, author of The Myth of Seneca Falls: Memory and the Women's Suffrage Movement, 1848-1898, join host Jeffrey Rosen. Additional resources and transcript available at podcast@constitutioncenter.org. Questions or comments? Email us at podcast@constitutioncenter.org.

As the world reflects on the anniversaries of COVID-19 lockdowns this week, this episode recaps the variety of constitutional issues sparked by the pandemic. Joshua Matz—a lawyer and partner at Kaplan Hecker and Fink LLP who successfully defended a Kentucky coronavirus-related public health order before the U.S. Supreme Court—and Adam White, a professor at George Mason Law and scholar at the American Enterprise Institute who has studied COVID-19-related constitutional issues—join host Jeffrey Rosen. They explore how the pandemic has fueled debates over governmental power to handle public health crises while balancing individual rights and liberties; the First Amendment rights of religious institutions in the face of shutdowns and other orders; state versus federal power; how courts ruled on voting rights issues during the 2020 election in the midst of the pandemic; how COVID-19 has affected inmates, immigrants, detainees and the criminal justice system, and more. Additional resources and transcript available

The Supreme Court recently heard oral argument in Lange v. California. The case asks whether a police officer violated the Fourth Amendment when he entered the garage of a person suspected of a misdemeanor crime without a warrant while in “hot pursuit” of him. Professor Jeffrey Fisher of Stanford University, who argued the case on behalf of Arthur Lange, and professor Donald Dripps of the University of San Diego Law School, a Fourth Amendment and criminal procedure expert, join host Jeffrey Rosen to discuss the case and its potential implications for policing, privacy, the Fourth Amendment, and more. Some terms that will be helpful to know for this week (definitions adapted from Legal Information Institute): -Warrantless entry: when a police officer enters a private residence without a warrant issued by a judge or magistrate that would allow the police officer to search a specified place for evidence even without the occupant’s consent -Hot pursuit: exception to the general rule that police officers need a wa

On March 2, the Supreme Court will hear oral arguments in Brnovich v. Democratic National Committee. The case centers on two of Arizona’s election rules: 1. Arizona does not count provisional ballots cast in person on Election Day outside of the voter’s designated precinct and 2. its ballot-collection law permits only certain persons (family and household members, caregivers, mail carriers, and elections officials) to handle another person’s completed early ballot. The DNC challenged the rules, arguing that both discriminate against racial minorities in Arizona. On appeal, the Supreme Court will consider whether both policies violate Section 2 of the Voting Rights Act of 1965—which prohibits nationally any election laws or policies that “results in a denial or abridgement of the right of any citizen of the United States to vote on account of race or color”—and whether the second violates the 15th Amendment—which states that “the right of citizens of the United States to vote shall not be denied or abridged by

In commemoration of Black History Month, this week we’re sharing the courageous stories and legendary lives of African American constitutional visionaries throughout history—including well-known figures like Frederick Douglass, Harriet Tubman, Sojourner Truth, Ida B. Wells, W.E.B. DuBois, Martin Luther King Jr., and Malcolm X, as well as some lesser-known but groundbreaking figures like Monroe Trotter and Pauli Murray. We highlight their fights to bring about constitutional change, from abolition and suffrage to the civil rights and voting rights movements and beyond. Judge Theodore McKee of the U.S. Court of Appeals for the Third Circuit, and professor Theodore M. Shaw of UNC Law, former director-counsel of the NAACP, join host Jeffrey Rosen. Additional resources and transcript available at constitutioncenter.org/interactive-constitution/media-library Questions or comments about the show? Email us at podcast@constitutioncenter.org.

Did President Trump’s January 6 speech prior to the attack on the Capitol constitute the crime of incitement? Is it necessary to demonstrate that it did in order for the Senate to find him guilty of incitement as a high crime and misdemeanor under the Impeachment Clause and convict him? What are the relevant legal and constitutional standards? Catherine Ross, George Washington University Law School professor and author of the forthcoming book A Right to Lie? Presidents, Other Liars, and the First Amendment, and Josh Blackman, professor of law at South Texas College of Law in Houston whose work has been cited by President Trump’s defense team during this second impeachment trial, join host Jeffrey Rosen to debate those questions. Some terms that will be helpful to know this week: “The Brandenburg test”: In Brandenburg v. Ohio (1969), the Supreme Court established that speech could be punished in a criminal trial only when the speech is: “directed to inciting or producing imminent lawless action” AND “likely

What are executive orders, and how has the Biden administration used them thus far? Presidential power experts Cristina Rodriguez, professor at Yale Law School and author of The President and Immigration Law, and Michael McConnell, professor at Stanford Law School and author of The President Who Would Not Be King, join host Jeffrey Rosen to answer those questions and more. They recap what they think are the most notable executive actions President Biden has taken in his first weeks in office, what their implications might be, and how they are being challenged, before reflecting on presidential power more broadly. To see the full list of executive actions discussed in this episode, visit the National Archives Federal Register page “2021 Joe Biden Executive Orders” Resources and transcript available at constitutioncenter.org/interactive-constitution/media-library Questions or comments about the show? Email us at podcast@constitutioncenter.org

A mob stormed the U.S. Capitol on January 6, leading to a ricochet of effects including the impeachment of President Trump. On this episode, experts Larry Kramer, president of the William and Flora Hewlett Foundation, and Colleen Sheehan, Director of Graduate Studies at the Arizona State School of Civic and Economic Thought and Leadership, explore the history of mobs past and present, online and in-person. They discuss how “good” versus “bad” mobs played a role at the Founding, and how concerns about mobs influenced the political and constitutional thought of Founders including James Madison. They also trace how different types of mobs evolved over time and were seen as illegitimate especially around the Civil War, as well as what has fueled mobs—particularly online mobs—today, including disinformation and social media. They conclude with some thoughts on potential reforms, including the need for more civic education and protections for free speech. Jeffrey Rosen hosts. Resources and transcript available at

Judge J. Michael Luttig, formerly of the Fourth Circuit Court of Appeals, and Professor Keith Whittington of Princeton join host Jeffrey Rosen to consider how to interpret the constitutional text and historical precedent surrounding the question of whether the senate can hold President Trump’s impeachment trial now that he’s left office. Judge Luttig explains why he thinks that the president cannot be tried and convicted by the senate after he has already left office, and why only the Supreme Court can answer the question of whether Congress can hold an impeachment trial for a former president. Professor Whittington details his view that a former president can be tried and convicted, and that it’s a purely political question up to the senate to ultimately decide. Resources and transcript available at constitutioncenter.org/interactive-constitution/media-library Questions or comments? Email us at podcast@constitutioncenter.org.

The House of Representatives voted to impeach President Trump for a second time this week, with a vote of 232 in favor, 197 against, and 4 not voting. Prior to the vote, host Jeffrey Rosen sat down with two experts on the Constitution and presidential power—Cristina Rodriguez of Yale Law School and Michael McConnell of Stanford Law School. They shared their thoughts on the article of impeachment passed by the House; the charge against President Trump of incitement of insurrection in the wake of the mob invasion of the U.S. Capitol; the meaning of high crimes and misdemeanors under the Impeachment Clause; if Section 3 of the 14th Amendment should be invoked to disqualify President Trump from holding office again; how the current media and information landscape may have contributed to polarization and events culminating in the riot; what reforms might help; and more. Professor McConnell is the author of the new book The President Who Would Not be King, and professor Rodriguez is the co-author, with Adam Cox, of

In the early morning on January 7, 2021, Congress certified President-elect Biden’s Electoral College victory after a pro-Trump mob stormed the U.S. Capitol. This episode reflects on the historic and constitutional significance of the events of “a date which will live in constitutional history.” Host Jeffrey Rosen was joined by Judge J. Michael Luttig, formerly of the U.S. Court of Appeals for the Fourth Circuit, and Dean Erwin Chemerinsky of Berkeley Law. They discuss the president’s debunked claims about the 2020 election results that sparked the riot; whether President Trump’s words at a rally held in Washington, D.C., on January 6 count as incitement under the law; what the blocking of President Trump’s social media accounts by Facebook and Twitter afterward means for freedom of speech; and what the unprecedented nature of the events means for the future of the country. Additional resources and transcripts available at constitutioncenter.org/interactive-constitution/media-library. Questions or comments a

A panel of experts dives into what early American founding figures—including Thomas Jefferson, John and Abigail Adams, George Washington, Mercy Otis Warren, and Phyllis Wheatley—learned from the Greeks and Romans, from their early education through adulthood, and how that knowledge came to influence founding documents such as the Constitution and Declaration of Independence and the scope and shape of the American republic. They also explore the founders’ philosophical understanding of passion versus reason, the meaning of “happiness,” and how ancient philosophy continued to influence American democracy throughout turbulent times including the Civil War. Historians and authors Caroline Winterer and Carl Richard and Pulitzer Prize-winning journalist Thomas Ricks joined National Constitution Center President and CEO Jeffrey Rosen. This program originally aired on our companion podcast, Live at the National Constitution Center. Check it out on Apple Podcasts, Spotify, or wherever you listen to catch up on the liv

2020 was a tumultuous and eventful year—starting with the impeachment trial, and then the COVID-19 pandemic, crucial conversations about racial inequality, the death of Justice Ruth Bader Ginsburg and addition of Justice Amy Coney Barrett to the Supreme Court, as well as the 2020 presidential election and ensuing court battles over it. How did the Constitution, and American institutions, prevail throughout? John Yoo, a professor at Berkeley Law who previously served in the Bush administration’s Justice Department, and Melissa Murray, a professor at NYU and co-host of the Supreme Court podcast Strict Scrutiny, reflect on that question and look back at the major events of 2020 through a constitutional lens. Jeffrey Rosen hosts. Additional resources and transcript available at https://constitutioncenter.org/interactive-constitution/media-library. Questions or comments about the show? Email us at podcast@constitutioncenter.org.

Article II, Section 2, of the Constitution says the president “shall have Power to grant Reprieves and Pardons for Offenses against the United States, except in Cases of Impeachment.” This episode explores presidential pardons past and present—from Thomas Jefferson’s pardons of people convicted under the Sedition Act, through President Carter pardoning Richard Nixon and George H.W. Bush pardoning those involved in the Iran-Contra scandal, to President Trump’s exercise of the pardon power today. Experts Brian Kalt of Michigan State Law School and Saikrishna Prakash of the University of Virginia Law School answer questions including: Can the president pardon himself? What does the history say? What are the limits of the pardon power? Does someone admit guilt when they accept a pardon? How might the Supreme Court rule on pardons? And more, in conversation with host Jeffrey Rosen.  Additional resources and a transcript are available at constitutioncenter.org/interactive-constitution/media-library. Questions or

In Roman Catholic Diocese of Brooklyn v. Cuomo (2020), the Supreme Court recently granted a preliminary injunction against (i.e. temporarily blocked) New York’s COVID-19 restrictions on attendance at houses of worship (pending further litigation), siding with the Roman Catholic Diocese of Brooklyn and two orthodox Jewish synagogues, who argued that the restrictions violated the free exercise of religion guaranteed by the First Amendment. Constitutional law experts Michael Dorf of Cornell Law School and David French of The Dispatch join host Jeffrey Rosen to unpack the decision, the restrictions at issue, and broader questions including: Has the Supreme Court become more open to claims of religious discrimination? And, in the context of the ongoing pandemic, does and should the Supreme Court still apply its usual judicial tests to determine if something is constitutional? They also explain the role of prior cases crucial to understanding the modern debate in the area of religious freedom law—from Employment Di

Can non-citizens be excluded from the census count, which serves as a basis of apportionment and allocates seats in the House of Representatives? Janai Nelson of the NAACP Legal Defense and Educational Fund and John Eastman of Chapman University debate this question, which is at the heart of Trump v. New York, the 2020 census case that the Supreme Court heard on November 30. Jeffrey Rosen moderates. Questions or comments about the podcast? Email us at podcast@constitutioncenter.org.

The National Constitution Center’s Constitution Drafting Project brought together three teams of leading constitutional scholars—team libertarian, team progressive, and team conservative—to draft and present their ideal constitutions. The leaders of each team—Caroline Frederickson of team progressive, Ilya Shapiro of team libertarian, and Ilan Wurman of team conservative—joined host Jeffrey Rosen to share the process behind their approach to drafting their constitutions and agreeing on what to include and not to include; the overall structure of their constitutions as well as the specific constitutional ideas they added to and subtracted from the U.S. Constitution; and the similarities and differences between the three constitutions. Team libertarian also included Timothy Sandefur of the Goldwater Institute and Christina Mulligan of Brooklyn Law School. Team progressive also included Jamal Greene of Columbia Law School and Melissa Murray of New York University School of Law. Team conservative also included Ro